March 8, 2012
Hands Off the Heavens
By JOHN R. BOLTON and JOHN C. YOO
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DO - For historical reasons rather than constitutional scheme, President
entertains more freedom in making decision in the realm of foreign policy than
in other domestic issues. Looking closely into the US Constitution, foreign
affairs are not entrusted to president as much as we tend to assume. Probably
the command-in-chief Article might be the strongest indication of legitimacy of
president controlling over foreign policy decision.
But, in the name of the need for speed and secrecy, President has gone
around Senate approval procedure by various tools, such as executive order and
directives. The US Supreme Court seemed to acquiescence the trend. (See Youngstown
(Jackshon, J., concurring)) It is more so when it comes to national security.
The authors raise two concerns – (1) national security, because the
voluntary commitment would limit military activity or activity that has
military implication in outer space, while China might not play by the same
rules, and (2) circumventing constitutional requirement imposed on President
making foreign policy decision
Speaking of (2), I doubt it is strictly Obama thing. Is there any
President who is willing to subject its power to Congressional scrutiny? Take
the Bush 2 on war on terror. He argued the AUMF was silver bullet in a way he
did not need additional Congressional approval in taking such a unusual action
as convening military commission. See Hamdan.
Speaking of (1), I wonder what the authors would suggest as an
alternative to voluntary commitment. I assume the alternative they have in
their mind is no action at all, putting the US in the most advantageous – or
the least disadvantageous -- position in championing arm race. In other words,
under the principle of reciprocity, the US should not make a commitment unless
China pledges to follow the suit, they appear to maintain. Then, my question is
who is going to take the lead in disarmament to stop pouring money into arms
race. Is the voluntary commitment the very area where American exceptionalism
should stand up?
Obama was not naïve enough to give up the US sovereignty, particularly in
the realm of national security. As the authors indicated, the voluntary
commitment is not legally binding. It is an example of smart power or diplomacy
in a sense that the US takes the lead in disarmament, putting itself in a
position to encourage other countries including China to leave outer space free
from arms race – the US takes credit without creating legal obligation on its
part.
The authors mention the role of the voluntary commitment in forming customary
international law. With a clear understanding of the elements of customary
international law, they should have known the difficulty of proving customary
international law, particularly opinion juris, which is the source of controversy
in many^2 cases. I simply don’t see how the voluntary commitment effectively
help form CIL. If there were legal memo on the issue, the State Dept attorneys
must have pointed it out.
Obligation not to defeat the object and purpose of a treaty prior to its
entry into force (Vienna Convention on the Law of Treaties, Art. 18) has little
to do with the CIL. Further, Obama did not “sign” the code of conduct, I guess.
In sum, the move by Obama on global regulation of outer space is an
example of smart power or diplomacy.
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OUTER space has become
the next frontier for American national security and business. From space, we
follow terrorists and intercept their communications, detect foreign military
deployments, and monitor a proliferation of unconventional weapons. Our Global
Positioning System gives us targeting and tactical advantages, spacecraft
create image-rich maps, and satellites beam data around the world.
But instead of
advancing American primacy in this realm, the Obama administration has wrongly
decided not only to follow a European Union draft “code
of conduct” regulating outer space, but also to circumvent the Senate’s
central constitutional role in making treaties.
The Obama
administration recently declared that America would follow, though not sign,
a European Union code of conduct for outer space — a transparent end run around
the constitutional requirement that the Senate ratify all treaties. This code,
drafted by Europeans who do not bear America’s global responsibilities,
restricts military activities in space as well as some peaceful dual-use
technologies, like the multistage rockets used to launch commercial satellites.
Europe aspires to prevent
an “arms race” in the heavens, but in reality, its code would substantially
impede advances in space technology because such innovations could also be
labeled as military. While security activities receive an exception, it appears
confined to self-defense, a term often defined narrowly to include only
cross-border attacks. We should not take the unnecessary risk that our rivals
will exploit such ambiguity to prevent legitimate American actions.
(DO- the two authors worked
under Bush, who used or created the term “preemptive self-defense.” My question
is “a term often defined narrowly to include only cross-border attacks” à seriously? )
Since there is little
our friends across the pond don’t want to regulate, it is no surprise that they
are now reaching for space. Taken literally, the European Union code would
interfere with our ability to develop antiballistic missile systems in space,
test anti-satellite weapons and gather intelligence.
And we shouldn’t
expect China to voluntarily accept limits on its space strategy anytime soon.
In 2007, China tested weapons that destroyed defunct satellites, and it is
deploying its own GPS system. In a war, China could potentially destroy our
satellites and still retain its own GPS capabilities.
Military and
intelligence strategists understand the risks these limits could pose to our
national security. A Joint Staff analysis provided to the House Armed Services
Committee states that “if the United States were to make a good-faith effort at
implementing the requirements of the draft Code,” it would most likely have an
adverse impact on military operations. Members of Congress recognize the
national security threats, too. They realize that America must not commit to
military limitations in a rapidly changing field before we understand all the
costs and benefits.
But the more
far-reaching danger is that Mr. Obama is eroding American sovereignty on the
sly. He knows that an arms-control treaty for space is unlikely. He barely
managed to push the new strategic arms reduction treaty with Russia — a bad
deal — through the Senate. In addition, he is trying to enter the United
Nations Convention on the Law of the Sea through the back door, by committing
our Navy to follow its terms even though the Senate refuses to consider it.
Other presidents have tried to comply with international
agreements without Senate approval. Bill Clinton bypassed the Senate when he signed the
International Criminal Court Treaty and regarded the Comprehensive Test Ban
Treaty as binding even after Senate rejection. Even Ronald Reagan adhered to
the 1979 strategic arms limitation treaty with the Soviet Union, but not under
the delusion that international law required it. And after seeing evidence of Soviet
cheating, Reagan ceased American compliance in 1986.
The Obama
administration has characterized its policies as voluntary compliance with
European standards, not a legal agreement. While such subterfuges allow
presidents to ignore selected parts of un-ratified agreements, the Obama
administration’s objective is precisely the opposite. When they were academics,
several of his current advisers loudly proclaimed that simply signing treaties
without the Senate’s consent helped form binding “customary international law.”
(DO- CIL can be proved
only with enormous efforts
if losing 10 stories in UN building is not a big deal, proving CIL wouldn't be a problem)
The Constitution’s
framers sought to preclude such schemes through the treaty process. They
worried about treaties with Britain and Spain that might cede territory or
sacrifice navigation rights in exchange for peace. They would have understood
that any arms control deal restricting our sovereignty required a treaty. Our
system allows statutes, known as Congressional-executive agreements, to make
some international agreements. But successive presidents and Senates have
reserved the most vital national obligations for treaties.
Constitutional
principles seem to be mere inconveniences to Mr. Obama, however. In pursuing
his long-term goal of blunting American power so it meets with approval in
international organizations and foreign capitals, the Senate’s role is a
nuisance at best. Instead, his administration is ordering our military and
intelligence agencies to comply with international agreements without the
“technicality” of Senate approval.
The Constitution
rightly provides broad executive powers to protect America’s security,
especially in responding to unforeseen crises with speed and secrecy. But
abusing presidential prerogatives in order to abide by a European code of
conduct that erodes American sovereignty eliminates the Senate’s important
constitutional role. That does not make America safer; it weakens it.
American security must
not be sacrificed for the false promises of global governance. The Senate can
defend its constitutional prerogatives by aggressively financing programs to
advance our lead in space and refusing to follow the administration’s
foreign-policy lead until Mr. Obama respects the Senate’s vital role in making
treaties and protecting national sovereignty.
John
R. Bolton, a senior fellow at the American Enterprise Institute, was
ambassador to the United Nations from 2005 to 2006. John
C. Yoo, a law professor at the University of California, Berkeley and a
former Justice Department official, is co-author of “Taming Globalization.”
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Council conclusions
and draft Code of Conduct for outer space activities
http://www.eu2008.fr/webdav/site/PFUE/shared/import/1209_CAGRE_resultats/Code%20of%20Conduct%20for%20outer%20space%20activities_EN.pdf
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LETTER
A Code for Outer
Space, as Seen From the State Dept.
Published: March 15,
2012
To the Editor:
Re “Hands Off the
Heavens,” by John R. Bolton and John Yoo (Op-Ed, March 9): From GPS navigation
to cellular communications, the benefits of space permeate our lives and are
vital to our national security and economy. Maintaining American leadership is
absolutely critical.
But orbital debris
and irresponsible actions in space have increased the chance of
collisions that could have damaging consequences for the United States and
others.
As more nations and
organizations use space, the United States must work with our allies and
partners to minimize these problems. The United States is joining with the
European Union and others to develop an International Code of Conduct for Outer
Space Activities to reduce the potential threat to American space assets by
endorsing nonbinding best practices and transparency and confidence-building
measures.
It is important to
clarify several points with respect to the code. It is still under development,
we would not subscribe to any code unless it protects and enhances our national
security, and the code would not be legally binding.
An International Code
of Conduct for Outer Space Activities would be like the Hague Code of Conduct
Against Ballistic Missile Proliferation adopted by the previous administration
and would not require Senate advice and consent. As we move forward, we will continue
to consult with Congress, American industry and the American public.
ROSE GOTTEMOELLER
Acting Under Secretary
of State for Arms Control and International Security
Washington, March 14,
2012
